The Austrian Supreme Court (OGH 24.2.2009, 17 Ob 2/09g -Aquapol-unzufriedene-) issued a decision on the 24th of February 2009 which allowed an dissatisfied customer of an “alternative wall-drying-method” (utilizing a “gravomagnetic” energy to force moisture out of brickwork, please see picture no. 1) to have its website under a SecondLevelDomain (http://www.aquapol-unzufriedene.at) which consist out of the trade name of the company (“Aquapol“) and out of the German word for “unsatisfied” (“unzufriedene“). On his website the customer runs a form on which people can post their experiences with the company and their methods.
The court found that the customer had clearly not “used” the trade name (“Firmenschlagwort“) as it was not used to refer to the origin of the service and furthermore there was no likeliness of confusion as it was obvious for the court that the customer’s website was not the website of the trade name owner.
Civil protection § 43 of the Austrian Civil Code (ABGB) was refused as the court found that using the trade name of the company was the only way for the customer to make express his opinion (freedom of speech) and that such a usage should not be treated differently than critical statements in book-titles or headlines of newspaper-articles.
The LG Düsseldorf (30.01.2002, 2a O 245/01 “scheiss-t-online”) in a similar case decided in 2002 against the defendant as his website was registered under the domain “scheiss-t-online” and only contained critical texts about the German telecommunications company T-mobile. the OLG found a trademark infringement as the Domain-name was found compromising under § 14 (2) Z.3 dMarkenG.
The defendant (customer) also uploaded a scan of the judgement. If you’ve never seen a Austrian court decision this pdf might be worth a look. Very, very authentic 😉
[Update: If you feel the need to gripe about a TM owner’s service practices you’ll find a nice guide here.]